29 FLRA No. 82
DEPARTMENT OF THE ARMY HEADQUARTERS
WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL
FORT SILL, OKLAHOMA
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Charging Party
and
GENERAL DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 886, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA
Party
Case No. 6-CA-60105
DEPARTMENT OF THE ARMY HEADQUARTERS
WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL
FORT SILL, OKLAHOMA
Agency
and
GENERAL DRIVERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 886, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA
Petitioner/Intervenor
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 273
Incumbent Labor Organization
Case No. 6-RO-40005

The Administrative Law Judge issued his Decision in the above-entitled
proceeding consolidating Case Nos. 6-CA-60105 and 6-RO-40005. In Case No.
6-CA-60l05, the Judge found that the Respondent had interfered with employees'
exercise of their statutory rights by violating the neutrality to be maintained
during the pendency of a question concerning representation (QCR). The Judge
concluded that the Respondent had engaged in the unfair labor practices alleged
in the complaint and recommended that it be ordered to cease and desist
therefrom and take certain affirmative action.

In Case No. 6-RO-40005, the Judge recommended dismissal of six of the seven
objections to the conduct improperly affecting the results of an election. The
Judge recommended that the remaining objection, Objection 5, which dealt with
the matter which was also the subject of the unfair labor practice proceeding in
Case No. 6-CA-60105, be sustained. In accordance with section 2422.21(g)(2) of
the Authority's Rules and Regulations, the Judge made no recommendation as to
any remedial action to be taken concerning that objection.

A hearing was conducted on the consolidated case at Fort Sill, Oklahoma on
June 26-28, 1986. At the outset of the hearing, the Judge granted the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Teamsters) status as a Party to the unfair labor practice case.
After the hearing, briefs were submitted to the Judge. The Judge issued his
decision on February 27, 1987. The Respondent and the Teamsters filed exceptions
to the Judge's decision. The General Counsel filed an opposition to the
exceptions.

Pursuant to sections 2422.21 and 2423.29 of the Authority's Rules and
Regulations and sections 7111 and 7118 of the Federal Service Labor - Management
Relations Statute (the Statute), we have reviewed the rulings of the Judge made
at the hearing and find that no prejudicial error was committed. The rulings are
affirmed. The Judge's findings, as modified herein, and his conclusions and
recommendations are adopted. On consideration of the entire record in this case,
we conclude, in agreement with the Judge, that a preponderance of the evidence
received demonstrates that the Respondent engaged in the unfair labor practices
alleged, and we shall issue an appropriate remedial order. We also conclude that
Objection No. 5 to the election should be sustained. We therefore will set aside
the runoff election and direct that a third election be held. [ v29 p2 ]

Because of the nature and number of exceptions to the Judge's Decision
submitted relating to the Judge's alleged failure to find certain facts, and to
the Judge's alleged error in finding other facts, we have set forth our findings
of fact below. We have prepared these findings of fact as a convenience to the
reader, and to set forth those facts established by the record which we find are
necessary to address the allegations of the complaint and objections to the
election.

I. Statement of the Case

On April 20, 1984, the General Drivers, Chauffeurs and Helpers Local Union
No. 886 (Teamsters Local 886) filed a petition to represent a 2500-employee
bargaining unit at Fort Sill, Oklahoma which was then represented by the
National Federation of Federal Employees (NFFE) Local 273. At that time, the
Teamsters represented about 600 employees of the Directorate of Engineering and
Housing at Fort Sill in a separate bargaining unit.

On June 20, 1985, an election was conducted for the bargaining unit at Fort
Sill being sought by the Teamsters. NFFE received 493 votes, the Teamsters
received 420 votes, and 251 votes were cast against exclusive recognition. 1
Because neither union received a majority of the votes cast, a runoff election
between NFFE and the Teamsters was required. The runoff election was held on
October 17, 1985 at Fort Sill. The Teamsters received 591 votes and NFFE
received 515 votes. NFFE filed objections to the election on October 22, 1985.

On November 18, 1985, NFFE filed an unfair labor practice charge against the
Department of the Army, Fort Sill. Amendments to the charge were filed on
January 21 and February 12, 1986. On February 19, 1986, the General Counsel
issued an unfair labor practice complaint. The complaint alleged that the
Respondent violated section 7116(a)(1) of the Statute, since on or about October
10, 1985, and continuing to date, the Respondent interfered with, restrained and
coerced employees in the exercise of their rights guaranteed in section 7102 of
the Statute.

Specifically, the complaint alleged that the Respondent breached the
requirement of neutrality during the pendency [ v29 p3 ] of a question concerning
representation at its Fort Sill facility by conducting a meeting in the Old
Executive Office Building at Washington, D.C. with representatives of Teamsters
Local 886, Teamsters headquarters, and employees of the bargaining unit which
was represented by NFFE during which matters concerning condition of employment
were discussed. The complaint alleged, in the alternative, that the Respondent
violated section 7116(a)(1) by conducting the meeting when the Respondent either
knew or should have known that there was a question concerning representation
and/or that the employees at the meeting were members of the bargaining unit
represented by NFFE.

The complaint and the objections to the election were consolidated for
hearing by the Authority's Regional Director on February 19, 1986. The hearing
was conducted at Fort Sill on June 26-28, 1986. Extensive testimony and exhibits
were received and all parties presented their positions in briefs to the Judge.

II. Findings of Fact

A. Case No. 6-CA-60105

1. Teamster's Request for a Meeting

On May 17, 1985, Teamsters General President Jackie Presser wrote to Edward
J. Rollins, Assistant to the President for Political and Governmental Affairs,
requesting a meeting regarding contracting out at Fort Sill, Oklahoma. The
letter indicated that the Teamsters were involved in an election campaign to
represent employees at Fort Sill. (The text of the letter is set forth at pages
6-7 of the Judge's Decision.) Rollins responded to Presser's letter on May 28,
1985, indicating his willingness to meet with Presser and representatives of
Teamsters Local 886 to discuss the Fort Sill situation. See pages 7-8 of the
Judge's Decision.

Presser had requested the meeting after Barry Feinstein, Director of the
Teamsters' Public Employee Trade Division, told him about a problem identified
at Fort Sill. Feinstein had learned about the contracting out issue from Charlie
Thompson, President of Teamsters Local 886, who was organizing at Fort Sill.
Thompson identified contracting out as the sole major issue there, and it
appeared to Thompson and Feinstein that the regulations governing contracting
out were not being followed at Fort Sill.

The Teamsters reproduced copies of the letters described above in a handbill
which was distributed at Fort [ v29 p4 ] Sill prior to the first election on June
20, 1985. The handbill also stated: "Teamsters have gone to the top for you and
we're not done yet."

On June 12, 1985, NFFE National President James M. Peirce wrote Rollins,
requesting that Federal employees at Fort Sill be informed that the White House
"takes no sides in the union representation election to be held there June 20,
1985. This request is made necessary by the publication and distribution of a
handbill reproducing letters exchanged by Teamsters President Jackie Presser and
yourself." The letter to Rollins stated that NFFE was the exclusive
representative of the Fort Sill employees in question, and that the Teamsters
had no standing to discuss contracting out on their behalf. Peirce requested a
response from Rollins by June 14, 1985.

On July 1, 1985, Rollins wrote to Peirce stating that the White House was
taking no sides in the election at Fort Sill. The letter further stated that
NFFE's access to the White House is equal to that of any other organization, and
that the President gives fair consideration to the legitimate concerns of all
citizens and their organizations. See pages 8-9 of the Judge's Decision.

2. Teamsters' Preparation for the Meeting

Feinstein, Director of the Teamsters' Public Employee Trade Division, wanted
the meeting to occur as soon as possible. The Teamsters' headquarters staff
arranged the details for the meeting, which was scheduled for October 10, 1985.
Feinstein testified that the purpose of the meeting was to alleviate fear of
loss of jobs at Fort Sill because of contracting out, and to represent employees
as best as the Teamsters could, since the Teamsters were going to win the
election.

At the Teamsters' Fort Sill office, there had been general talk of a meeting
in Washington, at the White House, for about 3 to 4 months prior to the event.
Nothing definite was mentioned, however, until Paul Plumlee, a Teamsters
business agent, contacted the selected employee-attendees on October 8, 1985,
and asked whether the persons wished to attend. Thompson made the selections of
the employees to attend the meeting. The selectees were not informed of the
purpose of the meeting, but were told that they might meet the President. The
selected employees flew to Washington at the Teamsters' expense. On arrival, the
employees first went to the Teamsters' headquarters for a briefing and to meet
national Teamsters' staff and officers. [ v29 p5 ]

3. Respondent's Preparation for the Meeting

A call was made from the White House to the Department of Defense and a
request was made that someone attend the scheduled October 10, 1985 meeting.
Marybell Batjer from the Department of Defense contacted the Department of the
Army seeking someone to attend the meeting. Michael Owen, Principal Deputy
Assistant Secretary of the Army for Installations and Logistics, and Valcris O.
Ewell, Jr., Deputy Assistant Secretary of the Army for Programs and Logistics,
learned of the meeting by a note dated October 3, 1985, signed by Katy Smith,
secretary to Assistant Secretary of the Army John Shannon. Shannon asked Owen
and Ewell to attend the meeting.

The October 3, 1985 note indicated that the topic of the meeting was
"contracting out problems at OK Army base." The note also indicated that the
meeting was being held at the Army's initiative, and that the meeting would not
begin until the Army's representatives arrived. Owen did not have any other
advance information about the meeting and was not aware of any background paper.

Ewell requested additional information in preparation for the meeting. He
asked Col. James Schroeder, assigned to the Comptroller of the Army, to find out
information for the meeting. On October 9th, Schroeder told Ewell information
for the meeting, while walking down a hallway. Additional conversation about the
meeting occurred during plane flights to and from Fort Dix early on October 10,
1985. Army files contain a memorandum from Schroeder to Ewell about this
information (General Counsel's Exhibit 20) which is reprinted on pages 10 and 11
of the Judge's decision. The memorandum stated that "the Teamsters are trying to
take over representation of the 2500 other (NFFE) employees(.) (T)he election
will be on 17 Oct." The memorandum also stated that "your (Ewell's) meeting is a
show the flag meeting to impress Fort Sill's workers that the Teamsters can do
more for them than the NFFE." Ewell testified that he did not recall seeing the
memorandum before the meeting, but that (1) the information told to him by
Schroeder is essentially the same as the information contained in the
memorandum; and (2) it would not be unusual to place a memo in the file as a
record of information supplied. Ewell gave inconsistent replies to questions
regarding his knowledge of the pending election at Fort Sill. However, Ewell
indicated that regardless of the pending election, it would not have made any
difference as to his attendance at the meeting. [ v29 p6 ]

4. Arrangements at the White House for the Meeting

On the morning of October 10, 1985, Andrew H. Card, Jr., Special Assistant to
the President for Intergovernmental Affairs, was asked to attend a meeting later
that day with Army and Teamsters attendees. The request was made by C. C.
McInturff after a 9:30 a.m. staff meeting. Neither she nor Mitchell E. Daniels,
Jr., or other assistants to the President, could attend the meeting because of
schedule conflicts. 2
Card was told by McInturff that Army personnel would handle the meeting, which
was to discuss contracting out, and that he should just be there, welcome
everyone, and host the meeting. The meeting was to be held in Room 122 of the
Old Executive Office Building. 3

5. The October 10, 1985 Meeting

When the Teamsters delegation arrived for the meeting, Card and Owen were
already in the room. The Teamsters delegation included: Kenneth Fox, Wire
Communications Cable Splicer, USAISC; Marge Duncan, Supply Clerk; Carl Stein,
Electronic Systems Mechanic, Directorate of Logistics (formerly called
Directorate of Industrial Operation); Aubrey Parks, Welder, DEH; Charlie
Thompson, President of Teamsters Local 886; Barry Feinstein; Joe McDermott,
Feinstein's assistant; and John Ring, a Teamsters Public Affairs Office
representative. Employees Fox, Duncan, and Stein are in the NFFE bargaining unit
where the election was being held; employee Parks is a member of the bargaining
unit represented by the Teamsters at Fort Sill.

Card took care of introductions, but did not participate further in the
meeting. Owen started the meeting, although Ewell had not yet arrived. The
discussion began about contracting out and the lack of communication to
employees about what was occurring. Ewell arrived about 10-15 minutes late, and
those present introduced themselves. After Ewell arrived, he took over the
meeting. [ v29 p7 ]

Parks spoke about the amount of money spent on contracting out surveys and
studies and gave the Army representatives a written statement. Fox talked from a
paper about cost plus contracting but did not provide a copy to the Army
attendees. Stein talked about contracting out procedures. The employees also
reported that the dates for some of the contracting out activities kept
changing.

Ewell was asked whether he would exempt some activities from contracting out
and whether he would change the fringe benefit rate used in computations. Ewell
gave a negative answer, Ewell learned that there appeared to be a lack of
communication with employees at Fort Sill, and that the employees' input was not
being sought concerning the contracting out. Ewell said he would ensure that
employees were kept informed and that their input would be sought, if it took
him coming to Fort Sill personally. When informed that employees feared losing
their jobs, Ewell said that there was no reason for any employee to be "shown
the gates" of Fort Sill.

Owen left the meeting while it was still in progress. After the meeting had
been in session for about 75 minutes, Card indicated that others needed to use
the room, and began to escort the attendees from the room. As the Army attendees
were leaving, Feinstein remarked that the Teamsters had done more in a short
time than NFFE had done during the entire time that it had represented the unit.

Ewell testified that the purpose of the meeting was to "show the flag." He
indicated that he would meet with anyone to discuss contracting out. Ewell
recalled NFFE being referenced at the meeting, but did not recall a reference to
an election.

6. Events After the October 10, 1985 Meeting

Shortly after the meeting, a flyer was prepared by the Teamsters about the
meeting. The flyer, the text of which is set forth at pages 16-17 of the Judge's
Decision, stated: "When we talk for you, the White House listens." It quoted
Ewell as stating that there is no reason why any worker should be "shown the
gates" of Fort Sill. The Teamsters' headquarters asked Thompson to have the
flyers distributed at Fort Sill.

About 5 days after the meeting, Owen saw a copy of the Teamsters flyer. He
read it carefully and thought it looked "OK," although he was not sure of
Ewell's exact words. Owen considered the flyer a "reasonable dovetailing of my
[ v29 p8 ] understanding of the meeting." Owen did not see it as important, and
did not do anything specific when he first saw the flyer. Owen testified that he
never thought to do anything about the flyer.

When Owen learned the results of the Fort Sill election, he sent a memo to
Batjer, indicating that the Teamsters won the election. He attached a copy of
the letter he received from McInturff, thanking him for attending the meeting,
and indicating that the White House was glad to have provided a neutral ground
for the meeting between Army and the Teamsters.

Ewell was shown a copy of the Teamsters' flyer at the hearing, reviewed it,
and indicated that it quoted him fairly accurately. He specifically recalled
using the term "shown the gates." After the meeting, Ewell had Schroeder check
on the problem of communications to Fort Sill employees, as he had promised
during the meeting.

Other events after the October 10, 1985 meeting concerning the objections to
the election will be discussed below in connection with each specific objection.
As noted earlier, the election was held October 17th, and the Teamsters received
a majority of the votes cast.

B. Facts and Circumstances Regarding Case No. 6-RO-40005

For the convenience of the reader, we are providing a summary of the facts
and circumstances relevant to the objections. We have thoroughly reviewed the
record, and as stated above, we conclude that the Judge appropriately evaluated
the evidence in this case.

1. Objection 1

Objection 1 involves alleged Teamsters entry and campaigning inside
commissary work areas during duty time, at 3:15 p.m. on September 27, 1985. The
Teamsters' representative mentioned is Marge Duncan. The Commissary requires
that non-employees sign in at a log, and wear an identification badge. The log
for September 27, 1985, reveals that Marge Duncan entered the Commissary at
11:25 a.m. and left at 12:03 p.m. There is no entry for her in the log book
during that afternoon. There is evidence that Duncan was at a retirement service
from 3:00 p.m. until after 4:00 p.m. that day. [ v29 p9 ]

The Commissary Officer reviewed the entire log for the period September 1,
1985 until the election on October 17, 1985. The log is kept in the Commissary
manager's office or just outside the secretary's office, upstairs. After 4:00
p.m. the log is brought downstairs to the Commissary store manager's office.
There is no guard by it. The secretary does not check entries. The Commissary
manager said that someone could forget to enter the log, but the person would
soon be stopped for not wearing the required badge.

2. Objection 2

Objection 2 concerns an allegation that a supervisor permitted the Teamsters
representatives to enter an office during duty time and speak to employees.
First, Sandra Heine, the employee reporting the incident, stated at the hearing
that she was given the incorrect surname for the person who "permitted" the
Teamsters' representative's presence. Mildred Hood, the name given in the
objection, was a recently retired supervisor. The employee who spoke to the
Teamsters representative and allegedly gave permission is Mildred Marshall, a
secretary. Heine did not know Mildred's surname, asked another employee, and was
told it was "Hood."

On October 9, 1985, at approximately 9:30 a.m., Carl Stein and another
Teamsters' representative entered the office. Stein spoke to the secretary,
Mildred Marshall. He asked whether the employees had a set break period, and was
told there was no set break period for the building. Stein asked whether they
might distribute literature, and Marshall had no objection. The Teamsters'
representatives then proceeded to place Teamsters brochures on the desks in the
office.

Stein testified that he asked Marshall whether there was a break area and was
told there was not. Stein did not notice any area that looked like a break area.

Heine testified that occasionally workers take breaks at their desks, but
that there is a break area. Heine stated that she and three other employees were
clearly working on their side of the office, and that they were not on break.
Stein stated that no other employees were present when the distribution of
literature began, and that an employee, believed to be Heine, returned while the
distribution was being made. He spoke to her for about 30 seconds, and left a
brochure on her desk. Stein estimated that he and the other representative were
in the building for about 5 or 6 minutes. [ v29 p10 ]

The supervisors for this office were not present at the time. Heine's
supervisor was on leave, and Marshall's supervisor was at a meeting.

3. Objection 3

The third objection deals with an alleged meeting between Teamsters'
representatives and an employee at the hospital reception desk on October 9,
1985 between 11:15 and 11:45 a.m. On October 9th, Wanda Seelig, an employee and
NFFE supporter, saw three Teamsters' representatives talking to the receptionist
during duty hours. She told them that it was illegal and would report it. Seelig
contacted Velda Mullins, an assistant to the Chief of Personnel. Mullins
received Seelig's call at 11:22 a.m. Mullins checked the clock immediately to
see whether this was before the lunch period. Mullins went over to the hospital
reception desk, which was about a 2-minute walk. She found three people, LaVona
Gribble, Dorey Clark, and an unidentified woman, standing and talking to Archie
Davis, who was behind the desk. Davis was on duty. She did not hear the
conversation. Mullins asked whether they were discussing union business, and she
was told they were not. Davis said that he was at lunch, but Mullins did not see
any lunch present. Mullins asked them to step aside from the desk so that
patients could sign in. They complied.

Gribble testified that the lunch period for hospital reception desk personnel
is from 11:30 to 12:30. She stated that she, Clark, and a Teamsters organizer
from Louisiana arrived there at 11:31. Davis called them earlier and asked them
to stop by. He invited then to a dance he was planning for Saturday night at a
hotel.

Later that day, Gribble, Clark, and the Teamsters organizer asked for and
received permission to speak to Seelig. They wanted to explain to her that they
had not been discussing union business, but had been discussing the dance which
Davis was planning. Seelig stated that she did not hear the conversation at the
reception desk, and that those present stopped talking when she walked in.
Seelig said that usually people do not become quiet unless they have been
caught, and that is why she reported this as a discussion of union business. She
said that it is common sense that you do not call someone and ask them to come
over just to invite them to a dance; you invite them over the phone. [ v29 p11 ]

4. Objection 4

Objection 4 alleges that the polling place within Building 4705 (polling site
7) was moved to an inappropriate area and that other improprieties occurred at
that polling place.

During the first election at Fort Sill, in June 1985, NFFE did not like the
location of polling site 7. So management, NFFE and the Teamsters
representatives met and discussed alternate locations. The Building 4705, which
housed the medical library, was selected as the place for polling site 7.

At approximately 7:05 a.m. on October 17, 1985, Mullins, assistant to the
Chief of Personnel, received a call from Capt. Stokes, of the hospital staff,
stating that the polling place was in the wrong part of the library. The polling
place had been set up by other management staff. Stokes said that computer
equipment was to be installed in that portion of the building that day. The
Chief of Personnel was not yet in, so Mullins went to the polling site to
explain the need to move the poll. Mullins explained the situation to the FLRA
agent, the Teamsters' observer, 4
and NFFE's observer, Wanda Seelig. Seelig objected. The FLRA agent did not
object or say anything. No one was voting at the time, although others had voted
earlier.

Mullins and Stokes moved the voting booth, tables, and chairs to the next
room, the medical library itself. After it was moved, the polling booth was the
same proximity from the door as it had been in the other room. Mullins knew of
no complaint concerning the location of the booth, nor any allegation that the
new location compromised ballot secrecy. Likewise, Mullins knew of no objection
to the placement of the tables and chairs in the medical library.

No one was turned away from voting during the move or because of relocation
of the polling site. Arrows were placed outside the building pointing to where
to go to vote. [ v29 p12 ]

During the hearing, the Judge obtained detailed information from various
witnesses concerning the layout of the polling site, and the approximate
distances involved in the site. The Judge had Crouse sketch a diagram of the
polling site. The Judge also asked many witnesses about the voting booth itself,
and it is apparent that the booth was fully covered on three sides, with a
shorter curtain on the fourth, or entry side. Thus, no one could see inside the
booth itself.

One allegation relating to the propriety of the new setting for the polling
site involves traffic through the area by those using the library during the
day. However, one witness testified that only one or two military doctors used
the library for books, and that the doctors did not stay long. No other
information on library patrons is contained in the record.

Another aspect of the objection involves communications workers who entered
the polling site for the stated purpose of seeing about a telephone installation
or installing a phone. The objection concerns a violation of the election ground
rules which required that all campaigning be at least 50 feet away from a poll.
The communications workers arrived at the medical library wearing Teamsters'
paraphernalia--for example, T-shirts, hats, belt buckles, etc. Three
communications workers were there, and it was objected that a telephone
installation does not require that many people. The communications workers did
not have a telephone with them. The workers laughed while they were there,
staying in the polling area about 10 minutes. There were voters present at the
poll at the time. The NFFE observer objected that the presence of the
communications workers, who were Teamsters' supporters, would potentially
intimidate voters. The Teamsters' observer testified that the workers came in,
did not bother anyone, and were not close to the voting booth. The FLRA agent
present at polling site 7 did not testify at the hearing.

Finally, the last part of the objection involves a Teamsters' campaigner
escorting a lady to the observer's table inside the polling site. Both the
Teamsters and the NFFE observers testified that a Teamsters* campaigner escorted
a lady inside the polling site and indicated to her where to go to vote. Both
also testified that the lady being escorted was a deaf, mute individual. The
NFFE observer objected because she did not believe that the individual needed an
escort. [ v29 p13 ]

5. Objection 5

This objection relates to the "White House" meeting of October 10, 1985,
which was publicized by a flyer prepared by the Teamsters and distributed at
Fort Sill just prior to the October 17, 1985 election. The facts regarding this
objection are set forth above in the findings of fact dealing with the unfair
labor practice.

6. Objection 6

Objection 6 deals with two allegations of Teamsters' representatives
distributing literature and campaign paraphernalia and talking to employees in
work areas on duty time.

Pam Hoover, a mail file clerk, testified that "Charlie from Florida" and
"Major" Peterson were in the work area after the morning break. She also
testified that on the day of the election, Marge Duncan and Peterson were in the
work area passing out materials.

Norma Mullin, Chief, Supply Branch, Material Support Division, testified that
on the day of the election, she received a call from a supervisor that
Teamsters' representatives were in the material management section. She left her
office and went there. The Teamsters were leaving as she arrived. She recognized
one of them, Peterson, a retired sergeant major. She knew that he had been
campaigning on behalf of the Teamsters.

7. Objection 7

Objection 7 addresses an allegation that Teamsters' representatives were
given access to locked work areas, after hours, to distribute campaign
literature.

On September 24, 1985, Katherine Crowl was the first employee to arrive at
the Reynolds Army Hospital Transcription Center. She unlocked the door and found
that two Teamsters brochures were on each desk. Within the office, only she and
the work leader had keys to the room, which is locked during non-work time.
Apparently there are master keys to the room, since cleaning service is
performed there in the evening. Thus, there was no way to prove how the
Teamsters gained entrance to distribute the literature. [ v29 p14 ]

III. Positions of the Parties

A. Department of the Army

The Department of the Army excepts to the Judge's conclusions that (1) the
October 10th meeting constituted conduct by the Army which employees would
reasonably interpret as an expression by the Army that it favored the Teamsters
in the pending representation election; and (2) the meeting gave the appearance
of bargaining concerning contracting out, or, alternatively, did constitute
bargaining concerning contracting out and its impact and implementation. The
Army essentially presents the same arguments in its exceptions and brief in
support of exceptions that it presented to the Judge.

B. Teamsters

The Teamsters filed extensive exceptions to the findings of fact and the
decision of the Judge. The Teamsters raise arguments regarding the underlying
situation similar to those made in its briefs to the Judge.

C. The General Counsel

The General Counsel argues in opposition to the exceptions that neither the
Department of the Army nor the Teamsters raises any arguments or legal theories
not already considered by the Judge. The General Counsel asserts that the
Judge's findings and decision are correct and should not be disturbed.

D. NFFE

The National Federation of Federal Employees did not file exceptions or any
opposition to the exceptions of other parties.

IV. Discussion of Case No. 6-CA-60105

Section 7116(a)(1) of the Statute provides that it is an unfair labor
practice for an agency to "interfere with, restrain, or coerce" any employee in
the exercise of that employee's rights under the Statute. The test which the
Authority has applied in order to determine whether an agency's conduct
constitutes interference, restraint or coercion is not the subjective
perceptions of the employee, nor is it the intent of the agency. Rather, the
test is whether, under the circumstances of the case, the agency's [ v29 p15 ]
conduct may reasonably tend to coerce or intimidate an employee, or, in the case
of a statement, whether an employee could reasonably have drawn a coercive
inference from the statement. Federal Mediation and Conciliation Service, 9 FLRA
199 (1982). See also, Department of Treasury, Internal Revenue Service,
Louisville District, 20 FLRA 660 (1985); U.S. Department of Justice. U.S.
Marshals Service, 17 FLRA 304 (1985).

The basic issue in Case No. 6-CA-60105 is whether the Department of the Army
interfered with or coerced employees' free exercise of their rights to select an
exclusive representative. The specific issue before us is whether Fort Sill
bargaining unit employees would reasonably infer that management expressed a
preference for the Teamsters from the actions of two key Army officials in
meeting and dealing with Teamsters' representatives at an October 10th meeting
regarding contracting out at Fort Sill. By use of the term "meeting and
dealing," we include meeting with Teamsters' representatives, listening to their
concerns, discussing their problems, and replying to those concerns and
problems. Such replies include the promises or commitments that employees would
not lose their jobs and that Ewell would personally come to Fort Sill, if
necessary, to ensure that communication with employees was accomplished. If such
a preference would reasonably have been inferred from the agency's conduct, the
conduct constitutes a violation of section 7116(a)(1) of the Statute.

At the time of the events giving rise to this case, NFFE and the Teamsters
were campaigning and preparing for a runoff election for a 2500-employee
bargaining unit at Fort Sill. During an election campaign, management has the
duty to remain neutral. Department of the Air Force, Air Force Plant
Representative Office (AFPRO), Detachment 27, Ft. Worth, Texas, 5 FLRA 492
(1981). A question concerning representation (QCR) exists when a question
regarding which labor organization should represent employees is pending. Should
any matter arise concerning employees' conditions of employment, management must
maintain existing conditions of employment until the QCR is resolved. Department
of Justice, Immigration and Naturalization Service, 9 FLRA 253 (1982), rev'd as
to other matters sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th
Cir. 1984). In the instant situation, while the QCR was pending at Fort Sill,
NFFE remained the exclusive representative of the bargaining unit employees in
the unit at issue. Therefore, management was obligated to deal with NFFE during
that period on matters which affected those bargaining unit employees'
conditions of [ v29 p16 ] employment, and management's dealing instead with
another labor organization concerning their conditions of employment would
constitute interference with the rights of those bargaining unit employees. See
id.

The facts reveal that Army officials did meet and deal with the Teamsters at
the October 10th meeting, concerning a condition of employment, namely
contracting out, for bargaining unit employees at Fort Sill. The meeting
occurred during the pendency of a QCR at Fort Sill. While the Teamsters did
represent a separate, smaller unit at Fort Sill, the Teamsters' allegation that
the meeting was limited to that unit's conditions of employment is unsupported
by the record. Rather, it is clear that the Teamsters and the NFFE bargaining
unit members in attendance presented contracting out problems facing Fort Sill
employees, including those employees in the unit which was the object of the
runoff election. The management officials present at the October 10th meeting
gave promises or assurances to the Teamsters' representatives and the NFFE
bargaining unit members in response to their inquiries and concerns with respect
to conditions of employment in the unit represented by the Teamsters and in the
NFFE unit. Specifically, in response to NFFE unit member Stein's concern that
workers would be unemployed as a result of contracting out, Ewell stated that
there was no reason for employees to be "shown the gates" of Fort Sill. After
Ewell was told by the Fort Sill employees that their input was not being
solicited and that they were not being informed of contracting out developments,
Ewell further stated that he would personally come to Fort Sill to ensure that
full communication with the workers occurred. In agreement with the Judge, we
find that this conduct by management provides a sufficient basis for finding
that the Agency violated its duty of neutrality during the pendency of a QCR.
From this conduct, employees reasonably could infer management's preference for
the Teamsters. Such conduct constitutes interference with the employees' right
to freely choose who should be their exclusive representative.

For the reasons discussed below, we conclude that the exceptions filed by the
Respondent and the Teamsters do not provide any basis to overturn the Judge's
conclusions that the Respondent's conduct constituted an unfair labor practice.

A. Exceptions by Department of the Army

The Department of the Army raised two exceptions regarding whether the
actions by Army officials at the October 10th meeting would reasonably be
interpreted by [ v29 p17 ] employees as an expression of preference for the
Teamsters, and whether the meeting constituted bargaining or gave the appearance
of bargaining concerning contracting out.

The Army's exceptions merely reflect disagreement with the Judge's
well-reasoned conclusions which we have adopted. As indicated above, the facts
clearly show that Army officials met with Teamsters representatives during the
pendency of a QCR at Fort Sill and discussed matters affecting NFFE bargaining
unit employees' conditions of employment. In agreement with the Judge, we find
that the Army was aware of the pending election at Fort Sill through information
provided by Schroeder and his memorandum. We have found this conduct sufficient
to constitute interference with the employees' exercise of their rights. We
therefore need not reach the issue of whether the conduct at the October 10th
meeting actually constituted bargaining.

B. Exceptions by the Teamsters

Many of the Teamsters' exceptions, or portions of exceptions, relate to the
Judge's findings of fact or to his failure to include certain alleged undisputed
facts in his Decision. The Teamsters also allege that the Judge "plagiari(zed)"
from portions of the General Counsel's brief. We have set out the facts of the
case, above, necessary to resolve the complaint. In preparing our findings of
fact, we have thoroughly reviewed the record and find that the Judge's findings
are supported by the record in this case. The Teamsters' exceptions merely
reflect disagreement with the Judge's interpretation of the record of this case.

The Teamsters also raise multiple exceptions, many of which are interrelated
or repetitive, and which concern matters not relevant to this complaint or
matters which we need not reach. As indicated below, we will not address
exceptions regarding these issues.

Finally, the Teamsters except to the Judge's failure to record in his
decision that the Teamsters are a &party' to both Case No. 6-CA-60105 and
Case No. 6-RO-40005. We have noted the Teamsters as a party to both cases in the
caption of this decision. Moreover, their status as a &party' to the unfair
labor practice proceeding, granted by the Judge, is clearly expressed on the
second page of this decision. [ v29 p18 ]

C. Teamsters' exceptions regarding section 7116(e)

Many of the Teamsters' exceptions relate to section 7116(e) of the Statute.
The Teamsters argue that management's conduct at the October 10th meeting is
protected by the provisions of that section, and that because of section 7116(e)
there is no basis for finding an unfair labor practice complaint against
management.

Section 7116(e) of the Statute states:

The expression of any personal view, argument, opinion or the making of any
statement which--

(1) publicizes the fact of a representational election and encourages
employees to exercise their right to vote in such election,

(2) corrects the record with respect to any false or misleading statement
made by any person, or

(3) informs employees of the Government's policy relating to labor-management
relations and representation,

shall not, if the expression contains no threat of reprisal or force or
promise of benefit or was not made under coercive conditions,

(A) constitute an unfair labor practice under any provision of this chapter,
or

(B) constitute grounds for the setting aside of any election conducted under
any provisions of this chapter.

Based on our findings of fact, we find that management's actions at the
October 10th meeting were not undertaken for any of the allowable purposes
listed above in subsections (1), (2), or (3). Further, even if we were to find
that management's actions fall within one of the three allowable categories, it
is clear that at least two promises were made by representatives of the
Department of the Army during the meeting: (a) that employees need not fear that
they would be "shown the gates" of Fort Sill, that is, they need not fear losing
employment if contracting out occurs; and (b) that officials of the Department
of the Army would ensure that employees were informed of activities concerning
contracting out at Fort Sill; that employees' input would be sought regarding
contracting out; and that, if this did not occur, [ v29 p19 ] an Assistant
Secretary of the Army would personally come to Fort Sill and conduct the
required communication with the employees. Therefore, because these promises of
benefit were made at the meeting in response to points raised by the Teamsters'
attendees, the meeting does not fall within the protection of section 7116(e).
See 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona,
18 FLRA 583, 607 (1985). For this reason, the exceptions raised by the Teamsters
involving section 7116(e) of the Statute are without merit.

D. Teamsters' exceptions regarding consultation on policy

Several of the Teamsters' exceptions contend that the October 10th meeting
constituted lawful consultation by a labor organization with management. The
Statute provides for two types of consultation: national consultation rights and
consultation rights on Government-wide rules or regulations. The authorities for
these rights are found at 5 U.S.C. 7113 and 7117(d)(1), respectively.
Implementing regulations for these consultation rights are found in Part 2426 of
the Authority's Rules and Regulations. Neither the Teamsters nor the Department
of the Army alleges that the Teamsters possess either of the consultation
rights, nor does the record reflect that these consultation rights are accorded
to the Teamsters. The "authorities" cited by the Teamsters in the exceptions do
not support its contentions in this regard.

The Teamsters also argue that the October 10th meeting constituted
"consultation" in general, under an entitlement established by the President's
policy statement on consultation with organized labor, and the Secretary of
Defense's implementing statement. This argument overlooks the fact that under
the Statute, management must deal only with the exclusive representative of its
employees regarding conditions of employment. Further, during the pendency of a
QCR, any dealings must be with the incumbent exclusive representative. Thus,
under this theory any consultations which management wished to conduct with
respect to the NFFE unit could have lawfully involved only NFFE. See Department
of Justice, Immigration and Naturalization Service, 9 FLRA 253, 283-86 (1982).

For the above stated reasons, the Teamsters' several exceptions regarding
consultation and presentation of views on policy matters are without merit.
[ v29 p20 ]

E. Teamsters' exceptions disagreeing with the Judge's conclusions or rulings

Several of the Teamsters' exceptions merely disagree with the Judge's
findings, conclusions or rulings which we have adopted for the reasons and with
the minor modifications set forth above. 5
As to those exceptions warranting separate consideration, we find, for the
reasons stated below, that none present grounds to alter the Judge's Decision.

The Teamsters except to the Judge's admission of General Counsel's Exhibit
20, which is the memorandum from Schroeder regarding information provided to
Ewell in preparation for the October 10th meeting. The Teamsters assert that the
memorandum is inadmissible because it is hearsay since Schroeder did not testify
and identify the memorandum at the hearing. The Judge found that the memorandum
was admissible since it was contained in the Department of the Army's files, and
because Ewell indicated, during his testimony, that the content of the
memorandum is essentially the same as the information conveyed to him by
Schroeder in advance of the meeting. Furthermore, 5 U.S.C. 7118(a)(6) provides
that in hearings in unfair labor practice cases, traditional rules of evidence
are not binding. Finally, Ewell testified concerning his office's practice of
preparing "memos to the record." For these reasons, the Teamsters' exception is
without merit.

The Teamsters except to the Judge's reliance on established Authority rulings
that agencies have a duty to remain neutral during the pendency of a QCR, and
that the incumbent union was and remains the representative of the employees
during the pendency of a QCR. The Teamsters' exceptions amount to nothing more
than disagreement with a long line of Authority decisions. We find no reason to
overturn our established precedent, and, in agreement with the Judge, as
explained above, we reaffirm the Authority's holding that agencies must remain
neutral during the pendency of a QCR. See Department of the Air Force, AFPRO, 5
FLRA 492, 500 (1981). We also reaffirm the principle that during the pendency of
a QCR the incumbent union was and remains the exclusive representative of the
employees. See Department of Justice, Immigration and Naturalization Service, 9
FLRA 253, 283-86 (1982). [ v29 p21 ]

The Teamsters also disagree with the Judge's ultimate conclusion that the
conduct of the Department of the Army constituted the unfair labor practice as
alleged. The Judge properly stated the test to be used in judging conduct in
situations concerning an agency's neutrality during the pendency of a question
concerning representation, such as surrounded the October 10th meeting. The test
is whether, under the circumstances of the case, the employer's conduct or
statements reasonably tend to interfere with the exercise of employees'
protected rights. Federal Mediation and Conciliation Service, 9 FLRA 199 (1982).
The Judge based his conclusion on that test. The Judge explained in detail the
facts relied upon to reach his conclusion. These included the events at the
meeting, the matters discussed, and the promises made. The Judge noted
especially the Respondent's statements that employees need not fear "being shown
the gates of Fort Sill" should contracting out occur, and Ewell's commitment to
personally come to Fort Sill, if necessary, to ensure that communications with
employees concerning contracting out occurred. The Judge also pointed to
Schroeder's memorandum, found in the Department of the Army's files, which Ewell
testified was essentially the same as the information orally supplied to him by
Schroeder in preparation for the meeting. The Teamsters' exception constitutes
nothing more than disagreement with the Judge's evaluation of the facts of the
case.

P. Teamsters' remaining exceptions

Finally, many Teamsters' exceptions address matters which are not relevant to
this complaint, or matters which are not necessary to address in order to decide
this case.

The Teamsters raise several exceptions regarding the Judge's failure to adopt
facts found in the General Counsel's decision to dismiss another unfair labor
practice charge against the Department of the Army. In agreement with the Judge,
we find that this case must be decided on its own record. 5 U.S.C. 7118(a)(7).
Further, the decision of the General Counsel on an appeal of a Regional
Director's decision not to issue a complaint is final, and is not subject to
review by the Authority or any other body. See Turgeon v. FLRA, 677 F.2d 937
(D.C. Cir. 1982).

The Teamsters except to the Judge's failure to find that bargaining about
contracting out is outside the duty to bargain. The Federal Service Labor -
Management Relations Statute, at 5 U.S.C. 7106(a)(2)(B), provides among other
things that it is a reserved management right to decide whether to contract out.
However, impact and implementation [ v29 p22 ] bargaining concerning contracting
out is within the duty to bargain. See American Federation of Government
Employees, AFL - CIO, Local 1923 and Department of Health and Human Services,
Office of the Secretary, Office of the General Counsel, Baltimore, Maryland, 22
FLRA No. 106 (1986), enforced sub non.. U.S. Department of Health and Human
Services v. FLRA, 822 F.2d 430 (1987); American Federation of Government
Employees, Local 1904 and Department of the Army, 16 FLRA 358 (1984); and
American Federation of Government Employees, AFL - CIO, National Council of EEOC
Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982), enforced
sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S.Ct.
1678 (1986) (per curiam). While the negotiability of contracting out is not a
part of the complaint before us, the Teamsters are raising the nonnegotiability
of contracting out as an affirmative defense. The Teamsters assert that if a
nonnegotiable subject were being discussed, the meeting could not have been a
discussion on conditions of employment. As indicated above, while the right to
make determinations with respect to contracting out is a reserved management
right, aspects of the impact and implementation of that right are within the
duty to bargain. Therefore, a meeting discussing such impact or implementation
of a contracting out decision constitutes discussion on conditions of
employment. Thus, the Teamsters' exception regarding the negotiability of
contracting out matters is without merit.

Several Teamsters' exceptions involve matters which generally relate to
employees' rights. These matters include, but are not limited to, freedom of
speech under the First Amendment, the right to petition, and the right to seek
information from appropriate sources within the Government. These issues do not
relate to the conduct of the Department of the Army, which is the subject of
this complaint. Since these exceptions raise issues which are not relevant to
the issues in this case, the exceptions do not provide any support for the
Teamsters' position that the Respondent did not commit the unfair labor
practices alleged.

Other Teamsters' exceptions address the rights of the Teamsters, including
rights associated with their status as an exclusive representative of another
bargaining unit at Fort Sill. Again, the Teamsters' conduct is not the subject
of the complaint in this case, and the issues which the Teamsters raise in this
regard are therefore irrelevant.

The Teamsters argue that the October 10th meeting was a formal discussion
concerning grievances or general conditions of employment at which the exclusive
representative in to be [ v29 p23 ] given the opportunity to be present, in accord
with section 7114(a)(2)(A) of the Statute. There were four Fort Sill employees
present at the meeting. The Teamsters were the exclusive representative of the
bargaining unit in which only one of the employees was located. The remaining
three Fort Sill employees were in the bargaining unit represented by NFFE. Thus,
this contention does not change the fact that management met and dealt with a
labor organization other than the exclusive representative with respect to
bargaining unit matters, during the pendency of a QCR.

Additional Teamsters' exceptions address the rights of NFFE. The rights and
conduct of NFFE, separate from the rights of the employees it represents, are
not involved in the actions of the Department of the Army which are the subject
of this complaint. Therefore, the Teamsters' exceptions regarding NFFE's rights
are irrelevant.

Lastly, other Teamsters' exceptions regard the "realities of electioneering"
and campaigning between rival labor organizations. Our answers to these
exceptions are contained in our overall findings and conclusions adjudicating
the substance of the complaint before us under the statutory framework that
regulates labor-management relations in the Federal sector.

G. Summary

Based on the discussion above, we find that the Department of the Army
violated its duty to remain neutral during the pendency of a question concerning
representation at Fort Sill, by meeting and dealing on conditions of employment
of the NFFE bargaining unit with representatives of the Teamsters at a meeting
on October 10, 1985. The Army knew of the pending election at Fort Sill. The
meeting related to contracting out at Fort Sill, for employees in the bargaining
unit then represented by NFFE, and for which the Teamsters were attempting to
gain recognition. Thus, management was meeting and dealing on matters involving
bargaining unit employees' conditions of employment with a labor organization
other than the exclusive representative of those unit employees. Furthermore,
Army management conducted these discussions with, among others, three employees
from the NFFE bargaining unit. By this conduct, management's actions, reasonably
interpreted, showed a preference for one of two competing labor organizations
during the course of an election campaign. This conduct interfered with the
bargaining unit employees' exercise of their rights to freely choose their
exclusive representative, and therefore violates section 7116(a)(1) of the
Statute. [ v29 p24 ]

V. Discussion of Case No. 6-RO-40005

Seven objections were raised regarding events related to the October 17, 1985
election between NFFE and Teamsters at Fort Sill. It is the goal of the
Authority to maintain conditions which will best ensure that the employees'
choice in selecting an exclusive representative will be free from outside
influence. The same premise exists for conditions for elections of exclusive
representative conducted by the National Labor Relations Board. While totally
perfect conditions may not always exist, efforts must be made to retain as close
to optimum conditions as possible.

The Judge recommended dismissal of six of the seven objections to conduct
alleged to have improperly affected the results of the election. We find, in
agreement with the Judge, that six of the seven objections should be dismissed.
The Judge recommended that the remaining objection, Objection No. 5, be
sustained. However, in accordance with the Authority's Rules and Regulations,
the Judge made no recommendation as to any remedial action to be taken
concerning that objection.

Objection No. 5 relates to the October 10th meeting which was the subject of
a Teamster campaign flyer entitled "When we talk for you, the White House
listens," and which was distributed less than 24 hours before the polls opened
on October 17, 1985. The events surrounding the October 10th meeting have been
discussed in detail in connection with Case No. 6-CA-60105 above, and need not
be recounted here. We find, in agreement with the Judge, that Objection 5 should
be sustained. In our view, the matters set forth in Objection 5 demonstrate
impermissible interference with the conduct of a fair election.

We have reviewed the entire record in this case, and conclude that Objection
No. 5 to the election should be sustained. We therefore find that the runoff
election conducted on October 17, 1985, must be set aside and we will direct
that a third election be held.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and
section 7118 of the Federal Service Labor - Management Relations Statute, the
Authority hereby orders that the Department of the Army, Washington, D.C. and
the Department of the Army, Headquarters, U.S. Army Field Artillery Center and
Fort Sill, Fort Sill, Oklahoma shall: [ v29 p25 ]

1. Cease and desist from:

(a) Conducting or participating in meetings requested by the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
arranged by White House staff, with employees in a unit represented by the
National Federation of Federal Employees, or any other labor organization,
during which terms and conditions of employment and matters of concern to
employees are discussed, while a question concerning representation involving
the unit is pending before the Authority.

(b) In any like or related manner, expressing a preference as to which labor
organization should prevail in a representation election.

(c) In any like or related manner, interfering with, restraining, or coercing
its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes
and policies of the Statute:

(a) Post at the Department of the Army, Office of the Secretary, in
Washington, D.C. and at all facilities of the Department of the Army, Fort Sill,
Oklahoma, copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be signed by
the Secretary of the Army, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. Reasonable steps shall
be taken to ensure that such notices are not altered, defaced, or covered by any
other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations,
notify the Regional Director, Region VI, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order as to what steps have been
taken to comply.

An election by secret ballot shall be conducted among the employees in the
unit set forth in the Agreement for Consent or Directed Election in Case No.
6-RO-40005 approved September 26, 1985, as soon as feasible, but not earlier
than sixty (60) days from the date of posting of the attached Notice To All
Employees. The Regional Director, Region VI, Federal Labor Relations Authority
shall supervise or conduct, [ v29 p26 ] as appropriate, the election subject to
the Authority's Rules and Regulations. Eligible to vote are those in the unit
who were employed during the payroll period immediately preceding the date
below, including employees who did not work during the period because they were
out ill, or on vacation or on furlough, including those in the military service
who appear in person at the polls. Ineligible to vote are employees who quit or
were discharged for cause since the designated payroll period and who have not
been rehired or reinstated before the election date. Those eligible to vote
shall vote whether they desire to be represented for the purpose of exclusive
recognition by the National Federation of Federal Employees, Local 273, or by
the General Drivers, Chauffeurs and Helpers Local Union 886, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America.

Issued, Washington, D.C.,October 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p27 ]

NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct or participate in meetings requested by the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
arranged by White House staff, with employees in a unit represented by the
National Federation of Federal Employees, or any other labor organization, and
during which terms and conditions of employment and matters of concern to such
employees are discussed, while a question concerning representation for the unit
is pending before the Federal Labor Relations Authority.

WE WILL NOT in any like or related manner, express a preference as to which
labor organization should prevail in a representation election.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights assured by the Federal Service Labor -
Management Relations Statute.

UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE
ARMY, WASHINGTON, D.C.
Respondent
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
Charging Party
and
UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE
ARMY, HEADQUARTERS, U.S.
ARMY FIELD ARTILLERY CENTER
AND FORT SILL, FORT SILL,
OKLAHOMA
Agency
GENERAL DRIVERS, CHAUFFEURS
AND HELPERS LOCAL UNION, NO.
866, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS
OF AMERICA
Petitioner/Intervenor
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 273
Incumbent Labor
Organization
Case No. 6-CA-60105
6-RO-40005

This is a proceeding arising under the Federal Service Labor - Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et
seq., 92 Stat. 1191, hereinafter referred to as the Statute, and the Rules and
Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter
XIV, 2400 et seq., hereinafter called the FLRA's Rules and Regulations.

A Notice of Hearing on Objections in Case No. 6-RO-40005 was issued on
November 6, 1985 by the Director of Region VI of the FLRA stating that a hearing
would be held based on timely objections filed by National Federation of Federal
Employees, 6
Local 273 (hereinafter called NFFE Local 273) with respect to a runoff election
conducted on October 17, 1985.

On November 18, 1985 a charge was filed by NFFE alleging that Department of
Defense, Department of the Army, Fort Sill, had violated the Statute. On January
31, 1986 a First Amended Charge was filed by NFFE alleging that Department of
[ v29 p2 ] Defense, Department of the Army, Washington, D.C./Department of the
Army, U.S. Army Field Artillery Center, Ft. Sill, Oklahoma violated the statute.
On February 12, 1986 a Second Amended Charge was filed by NFFE alleging that
Department of Defense, Department of the Army, Washington, D.C., hereinafter
called Army, violated the Statute.

On February 19, 1986, the Director of Region 6 of the FLRA issued a Complaint
and Notice of Hearing in Case No. 6-CA-60105 alleging that Army violated section
7116(a)(1) of the statute on or about October 10, 1985, by breaching the
requirement of neutrality during the pendency of a question concerning
representation of its Fort Sill, Oklahoma facility by conducting a meeting with
representatives of the General Drivers, Chauffeurs and Helpers Local Union No.
886, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 7
and employees of the bargaining unit which was represented by NFFE, Local 273,
during which matters concerning conditions of employment were discussed. In the
alternative, the complaint alleged that Army violated section 7116(a)(1) of the
statute on or about October 10, 1985, by breaching the requirement of neutrality
during the pendency of a question concerning representation at its Fort Sill,
Oklahoma facility by conducting a meeting with representatives of the Teamsters
Local 886, Teamsters International, and employees of the bargaining unit which
was represented by NFFE, Local 273, during which matters concerning conditions
of employment were discussed when Army either knew or should have known that
there was a pending question concerning representation and/or that the employees
at the meeting were employees of the bargaining unit represented by NFFE, Local
273. On February 19, 1986, an order consolidating Case No. 6-RO-40005 and Case
No. 6-CA-60105 issued. Army filed a timely answer denying it had violated the
Statute.

A hearing was conducted before the undersigned in Fort Sill, Oklahoma. All
parties were represented and afforded full opportunity to be heard, to examine
and cross-examine [ v29 p3 ] witnesses, to introduce evidence and to argue orally.
Post bearing briefs and reply briefs have been filed and fully considered.

Based upon the entire record In this matter, my observation of the witnesses
and their demeanor, and my observation of the record, I make the following:

On April 20, 1984, IBT Local 886 filed a petition n Case No. 6-RO-40005 for
election in a bargaining unit 8
which was represented by NFFE Local 273 and consisted of:

All nonsupervisory, nonprofessional appropriated fund employees stationed at
Fort Sill, Oklahoma, for whom the Commanding General, U.S. Army Field Artillery
Center and Fort Sill, Fort Sill, Oklahoma; or the Commander, U.S. Army Medical
Department Activity, Fort Sill; or the Commander, U.S. Army Dental Activity,
Fort Sill; or the Director, U.S. Army Communications Command Agency, Fort Sill,
or the Commissary Officer, Fort Sill Commissary, Midwest Region, U.S. Army Troop
Support Agency, Fort Sill, has delegated appointing authority, excepting those
units already covered by exclusive recognition as excluded below,

and excluded:

All nonprofessional, nonsupervisory, GS and WG employees assigned to the
Directorate of Facilities Engineering under Exclusive to the Teamsters Local
[ v29 p4 ] 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; also excluded are employees assigned to the U.S. Army
Field Artillery Board and employees of any other organization that are or may be
assigned to Fort Sill for which the Commanding General, U.S. Army Field
Artillery Center and Fort Sill; or the Commander, U.S. Army Medical Department
Activity, Fort Sill; or the Commander, U.S. Army Dental Activity, Fort Sill, or
the Director, U.S. Army Communications Command Agency, Fort Sill; or the
Commissary Officer, Fort Sill Commissary, Midwest Region, U.S. Army Troop
Support Agency, Fort Sill, does not have delegated appointing authority;
management officials, professional employees, employees engaged in Federal
personnel work in other than a purely clerical capacity, and supervisors as
defined in Executive order 1141, as amended, and all personnel whose duty
station in other than Fort Sill, Oklahoma.

On December 19, 1984, the Regional Director for the Sixth Region issued a
decision and direction of election in Case No. 6-RO-40005. NFFE filed an
application for review of the Regional Director's decision and direction of
election, which was denied by the Authority on April 15, 1985. Pursuant to the
decision and direction of election, the parties to the election, U.S. Department
of Defense, Department of the Army, Headquarters, U.S. Army Field Artillery
Center, Fort Sill, NFFE Local 273, and Teamsters Local 886, reached an agreement
for consent or directed election which was approved by the Regional Director for
the Sixth Region on May 30, 1985.

On June 20, 1985, an election was conducted In the unit described above at
the Fort Sill, Oklahoma facility. The results of the election were inconclusive,
however, as neither NFFE Local 273 nor Teamsters Local 886 received a majority
of valid votes cast In the election. NFFE Local 273 received 493 votes;
Teamsters Local 886 received 240 votes.

On September 26, 1985, the Regional Director for the Sixth Region approved a
second agreement for consent or directed election, which provided for a runoff
election [ v29 p5 ] between the Teamsters Local 886 and NFFE Local 273 in Case NO.
6-RO-40005. The runoff election was conducted on October 17, 1985, at Fort Sill.
IBT Local 886 received a majority of valid votes cast in the election.

Following the election on October 22, 1985, NFFE filed objections 9
to the election, which were consolidated with the unfair labor practice charge
in this case.

B. Background Concerning the Arrangements made for the October 10, 1985
"White House" Meeting

Prior to the first election on June 20, 1985, Jackie Presser, General
President of IBT, on May 17, 1985, wrote a letter to Edward J. Rollins,
Assistant to the President for Political and Governmental Affairs, requesting a
meeting to discuss contracting out at Fort Sill. Presser's letter is as follows:

Teamsters Local Union No. 886 presently represents the employees of the
Department of Engineering and Housing, Motor Pool, and other auxiliary workers
at Fort Sill, Oklahoma. Teamsters are currently involved in an election campaign
for 2,400 additional Ft. Sill workers, many of whom are affected by the issue
raised in this letter.

Our members, led by officers of Local 886, are fighting an attempt to
contract out several functions at Ft. Sill. Management at Ft. Sill has dreamed
up a proposed contract that will cost the federal government untold dollars,
destabilize the local economy and decrease the level of employee efficiency. If
the proposed contract becomes a reality, it will surely wipe out the pension
plans and jobs of workers who have given years of dedicated services.

The process of devising this phony contract violated most every regulation
[ v29 p6 ] that is supposed to be followed. Management did not consult nor give
Local 886 the opportunity to challenge the data offered in support of
management's claim that contracting out would be cheaper. As you know, in a
recent federal decision, an arbitrator ordered a contract cancelled and the
employees reinstated with back pay because of violations just like those
occurring at Ft. Sill.

We believe our members deserve better. The Government will not be any better
off if this work is contract out. We urgently request a meeting to discuss with
you the union side of this issue. I look forward to hearing from you and any
assistance you might render.

By letter dated May 28, 1985, Rollins responded, as follows:

Dear Jackie:

I am in receipt of your letter regarding Teamsters Local 886 and Ft. Sill.

Jackie, as you know, contracting out is a complicated process that must be
judged on a case by case basis. The Secretary of Defense has made a series of
recommendations to the House Armed Services Committee on contracting out
government work, and we expect new legislation In the near future.

I would be glad to meet with you and/or the representatives of Teamsters
Local 886 to go over the particulars of the Ft. Sill situation. We understand
that your insistence that your members be treated fairly, and I want to assure
you that we have every intention of protecting the workers in the federal
government. I hope that we can resolve the situation at Ft. Sill in a way that
everyone will find acceptable and fair. [ v29 p7 ]

Best personal regards.

Sincerely,

Edward J. Rollins
Assistant to the President
for Political and
Governmental Affairs

During the election campaign, preceding the June 20 election, Teamsters Local
886 distributed a handbill displaying both Presser's letter to Rollins and
Rollins' response. The handbill also contained the following:

Teamsters have gone to the top for you and we're not done yet. On June 20th,
the biggest question is representation. And that's why the biggest union in the
free world is the only answer. On June 20th, vote for the Public Employee
Division of Local 886 Teamsters. Local 886 Headquarters, 2202 Fort Sill Blvd.,
Lawton, OK 73501.

I am in receipt of your letter regarding the union representation election at
Fort Sill involving the National Federation of Federal Employees Local 273. I
want to state clearly that the White House takes no sides in the election at
Fort Sill or in any other union elections. Furthermore, [ v29 p8 ] it should be
clear to all that the President gives fair consideration to the legitimate
concerns of all citizens and their organizations. In this respect NFFE's access
to the White House is equal to that of any other organization.

I trust this will eliminate any confusion that may exist at Fort Sill.

Sincerely,

Edward J. Rollins

During the runoff election campaign NFFE circulated a handbill which
reproduced this letter. There is no evidence NFFE attempted to set up any such
meeting.

When Barry Feinstein, Director of the Public Employee Trade Division for IBT
was notified of the Rollins' May 28, 1985 response, he requested a meeting be
set up as soon as possible. The meeting was arranged for October 10, 1985. The
details of the meeting were worked out by IBT, who later called Feinstein and
informed him of the date the meeting would take place and how many people would
be able to attend. IBT also asked Feinstein to provide the names and
identification of those people who would be in attendance. Feinstein called
Charlie Thompson, President of IBT Local 886, and asked him to select the people
who would be "appropriate" to attend the October 10, 1985 meeting. Feinstein
later provided the IBT with the names and identification of those who would be
present.

Three or four months prior to the October 10, 1985 meeting, IBT organizers
approached two employees included in the NFFE bargaining unit, Marge Duncan and
Carl Stein, and informed them of a possible meeting in Washington.

Two days prior to the October 10, 1985 meeting, Duncan and Stein, and a third
member of the NFFE bargaining unit, Kenneth Fox, were approached by Paul
Plumlee, Teamsters' Business Agent, and were invited to attend the meeting. Fox
secured leave to attend the trip through his supervisor, Williams, and his
foreman, Quoyah. He informed them he was going to attend a meeting in Washington
with the Teamsters.

A week prior to the October 10, 1985 meeting, Michael Owen, Principal Deputy
Assistant Secretary for Installations [ v29 p9 ] and Logistical was informed of
the "White House" meeting with the Teamsters. He was given a memorandum dated
October 7, 1985, which indicated there would be a meeting on October 10 from
3:00 - 3:30 p.m. with the Director of Governmental Affairs, the Teamsters,
members of (Teamsters) Public Employee Trade Division, and an Oklahoma
Bargaining Unit, The memorandum listed the purpose of the meeting as "To discuss
contracting out problems at OK Army Base."

Valcris Ewell, Deputy Assistant Director of the Army for Programs and
Logistics, was also sent a copy of the October 7, 1985 memorandum, setting up
the "White House" meeting with the Teamsters. Upon seeing the memorandum, Ewell
called Colonel James Schroeder, a staff member on the Department of the Army
staff in the Comptroller of the Army's office, to find out "what the meeting was
about, who, et cetera." As a result of this request, Colonel Schroeder prepared
a one-page briefing paper for the meeting. The memo which is addressed to Ewell
and signed by James M. Schroeder, Colonel, GS, Chief, OERP Division, is as
follows:

DEPARTMENT OF THE ARMY
OFFICE OF THE COMPTROLLER OF THE ARMY
WASHINGTON, DC 20310
DIRECTORATE FOR RESOURCE MANAGEMENT
DACA-PME
MEMORANDUM FOR MR. EWELL
SUBJECT: Meeting at OEOB on Fort Sill Commercial Activities

1. Following is information available on the situation at Fort Sill for your
meeting tomorrow.

- The Teamsters Union represents the 600 DEH employees, the only Teamster
local in the Army. The National Federation of Federal Employees (NFFE)
represents the other 2500 employees on Fort Sill.

- The Teamsters are trying to take over representation of the 2500 other
employees. The election will be on 17 Oct.

- The NFFE has been advertising that the Teamsters don't care what happens In
the CA [ v29 p10 ] studies (listed attached). The Teamsters will represent the
winner, contract or in-house decision. The NFFE represents only government
workers.

- Jackie Presser will reportedly be present to claim that the union is
working to get a good review. But, they have problems with the CA program.

2. Your meeting is a show the flag meeting to impress Fort Sill's workers
that the Teamsters can do more for them than the NFFE.

NOTE: The management study has been completed for all but the last entry.

While Ewell did not remember seeing the Schroeder memo, Schroeder did provide
the "substance" of his memo to Ewell orally. 10
[ v29 p11 ]

On October 10, 1985, Andrew Card, Special Assistant to the U.S. President for
Intergovernmental Affairs, attended a regular political and intergovernmental
affairs meeting in Mitch Daniel's office. Mitch Daniels was the Assistant to the
U.S. President for Political and Intergovernmental Affairs. 11

After the meeting, Card was approached by C.C. Cole McInturff, Special
Assistant to the U.S. President for Political and Intergovernmental Affairs, and
was asked to attend a meeting which neither she nor Daniels could attend.
McInturff told Card that the Department of the Army was aware of the meeting and
the issues that would be raised. She also told Card the Teamsters and officials
from the Department of the Army would be present and the subject of the meeting
would be contracting out. Card, agreed to attend.

C. The October 10, 1985 meeting

On October 10, 1985, five employees from Fort Sill's two bargaining units
left Lawton, Oklahoma for the "White House" meeting in Washington, D.C. Three
employees who were in the NFFE bargaining unit went to the meeting; they were:
Kenneth Fox, Wire Communications Cable Splicer, USAISC; Marge Duncan, Supply
Clerk; and Carl Stein, Equipment Repairer, Directorate of Logistics (DOL), which
was formerly known as the Director of Industrial Operations (DIO). Two employees
in the Teamsters bargaining unit who also attended were Aubrey Parks, Welder,
DEH, and Charlie Thompson, President of Teamsters Local 886. Both Fox and Parks
brought with them papers which they had written concerning contracting out.

The five employees from Fort Sill arrived in Washington, D.C. at about 1:00
p.m. on October 10, 1985, and immediately proceeded to the IBT Headquarters. At
the Teamsters' Headquarters, the employees were met by Feinstein, Joe McDermott,
Feinstein's assistant, and John Ring, a Teamsters representative from the Public
Affairs office. The five employees and three Teamsters representatives met for a
20-45 minute briefing. During the briefing, the employees generally discussed
the "White House" meeting.

Following this briefing, employees Fox, Duncan, Stein, Thompson and Parks,
and Teamsters representatives Feinstein, [ v29 p12 ] McDermott, and Ring went to
the Old Executive Building. Upon arriving at the Old Executive Building, the
employees were checked in through Security. The Security Office checked for
their names on a roster and checked on the employees' identity through a
computer. After Security checked the employees' names and identity, the
employees and Teamster representatives were taken to an unused office in the Old
Executive Building. There they were met by Card and Owen, who introduced
themselves to the employees and Teamsters representatives. 12

Upon Ewell's arrival, Ewell introduced himself to the group and Fox
introduced himself as "Kenneth Fox, I work at USAISC, Fort Sill, Oklahoma";
Duncan introduced herself as "Marge Duncan, Supply Clerk, Fort Sill, Oklahoma";
and Stein introduced himself as "Carl Stein, Equipment Repairer, Fort Sill,
Oklahoma."

The general subject of the meeting was contracting out and its implications.
Fox spoke about the fringe benefits factor and his belief that fringe benefits
do not exist when Federal wages are 18 and 36 percent below the private sector.
Ewell disagreed with this statement and Feinstein supported Fox's assertion. Fox
also complained about contracting out in his own particular directorate, USAISC.
14
Fox complained that the contract date for his organization had been repeatedly
changed. [ v29 p13 ]

There was discussion concerning contracting out and CA studies in DOL. 15
Stein spoke about contracting out and the lack of communications with respect to
all the procedures of the Office of Management and Budget Circular A-76. Stein
discussed how contracting out affected employee morale. Stein and Ewell
discussed contracting out in DIO. Ewell stated that people seemed to be
misinformed, he was going to find out why, and if it took him coming to Fort
Sill to talk to the people, he would do it. Duncan, also discussed contracting
out. Parks brought a paper to the meeting, which he presented to Ewell. Parks'
discussion centered around the amount of money spent on cost surveys,
contracting out, mobilization, and the fact Fort Sill was a model institution.

With regard to communication issues, Ewell was asked if employees at Fort
Sill had the right to make input to the commercial activities process. Ewell
indicated they did and promised that "if they could not get anybody else to
communicate with them, I would personally come to Fort Sill and communicate with
them and let them know what their rights and responsibilities were under the
process."

Parks mentioned "the type of contracting, the A-76, some of the things that
he felt were unfair and wanting knowledge about that subject." Fox spoke about
cost plus contracting and things in the OMB Circular A-76 that he felt were
ridiculous.

Ewell did most of the speaking at the meeting. He went into cost plus
contracts and addressed the various concerns of the employees. Ewell stated that
he would check on people's concerns out there at Fort Sill, and he would get
with the Commanding General, if necessary, or he would come out to Fort Sill to
find out what was going on. Also Stein indicated people were under the
impression they were going "out the gate." Ewell replied "nobody would go out
the gate." There was also discussion that contracting out affected employee
morale. [ v29 p14 ]

After the meeting, while the employees were taking pictures, Feinstein made a
comment that NFFE, who represented Fort Sill employees for years, had not done
in that several years period of time what the Teamsters had done in a short
period of time in attempting to meet with officials of the government. Feinstein
pointed out that the workers at Fort Sill certainly would understand the
difference between a union that is actively engaged in supporting their goals
and aspirations and a union that had represented them for years and hadn't done
anything affecting the most serious problem that existed for them.

D. Activities Subsequent to the Meeting

Upon their return to Fort Sill, the NFFE bargaining unit employees who had
attended the October 10, 1985 meeting, Fox, Duncan, and Stein, actively began
campaigning for the Teamsters. On October 11, 1985, Duncan attended a
pizza-dinner-at-lunch party where she met with a group of employees. The lunch
was held in the employee break room in building 2243. Management had prior
notice of the lunch. About 35-50 employees were in attendance. These employees
were in the NFFE bargaining unit. Aside from Duncan, several IBT organizers were
present. During this meeting, Duncan told the NFFE bargaining unit employees
that she had been to a meeting in Washington and met with some high ranking
government officials, namely, an Assistant to the President and the Secretary of
the Army. Duncan told the employees that the individuals in Washington had said
they bad never heard of NFFE and didn't know who NFFE was. Further, Duncan said
that the individuals had stated that they were not even aware that NFFE did any
lobbying in Washington. Duncan also informed the employees that the Washington
meeting concerned contracting out, wage surveys, and DIO.

After Fox's return to Fort Sill from the October 10, 1985 "White House"
meeting, Fox met with a number of his co-workers employed in USAISC. Fox told
them that he had gone with the Teamsters to a meeting at the White House where
they had met with the Assistant Secretary and a Special Assistant to the
President. He told the employees he had voiced his concerns about contracting
out and said that the Army's representative, Mr. Ewell, had stated that he would
come to Fort Sill if necessary to assure that Fort Sill was following OMB
Circular A-76 procedures.

Two days after the October 10, 1985 meeting, Stein accompanied by Duncan,
addressed a group of Fort Sill [ v29 p15 ] employees at "open general meeting"
sponsored by the Teamsters. Ten to twenty people from both the Teamsters Local
and Fort Sill attended. Both Duncan and Stein spoke in front of the employees
and told them of the "White House" meeting. They informed the employees they had
met with Ewell and Owen. They explained who Ewell was and his position with the
Army told them informed and they said that the people at Fort Sill weren't
informed, and that Ewell said he would come down personally to inform the people
if it was necessary. After informing the employees about the meeting, Stein made
a special point of thanking Teamsters representatives Plumlee and Thompson for
allowing him the privilege to attend.

Following the meeting, the following memorandum was prepared by the Teamsters
and distributed at Fort Sill prior to the October 17, 1985 election.

When we talk for you, the White House listens.

The White House listened. The Public Employee Division of Local 886 Teamsters
wanted a meeting at the White House with Department of the Army officials to
frankly talk about contracting out.

We got the meeting. And who did we meet with at the White House for nearly
two hours? We met with Andrew H. Card, Jr., Special Assistant to the President;
Michael W. Owen, Principle Deputy Assistant Secretary of the Army; and Valcris
O. Ewell, Deputy Assistant Secretary of the Army, the man who decides who and
what gets contracted out, And what did Ewell say to us? Ewell said: "There is no
reason why any worker should be shown the gates of Fort Sill." And that's not
all Ewell said to Local 886 Secretary - Treasurer, Charlie Thompson; Wire
Communications Cable Splicer, Ken Fox; Electronic Integrated Systems Mechanic,
Carl Stein; Supply Clerk, Marge Duncan and Welder, Aubrey Parks.

Ewell said that he would discuss the cost factors of contracting out with
[ v29 p16 ] you. And we agreed. Ewell said that Fort Sill had failed to follow
procedures ordered by the Department of the Army. Ewell said they were supposed
to talk with you. They didn't....and NFFE couldn't get them to. But Ewell, after
talking to the Teamsters, said he will listen to you and that we don't have to
write. We just have to call. This is the first time Fort Sill workers have been
listened to.

On October 17th, keep them listening to you in Washington and at Fort Sill.
Vote Teamsters. The Public Employee Division of Local 886 Teamsters.

Owen and Ewell became aware of this flyer prior to the election and took no
action.

A series of documents from the Army's files establish that prior to the
October 10, 1985 meeting the Army was aware of the impending representation
election and of the contracting out that was taking place at Fort Sill.

On September 27, 1985, at 3:15 p.m., Commissary Officer Boggs allowed
Teamster representative Marge Duncan to enter the Commissary work areas to
campaign among the employees on work time, thus affording the Teamsters unfair
advantage.

There was no credible evidence supporting this objection. [ v29 p17 ]

Objection 2

On October 9, 1985, at approximately 9:30 a.m., Mrs. Hood, 17
Acting Supervisor of Administrative Management Office, permitted Teamster
representatives to talk to three employees on work time in their respective work
areas.

Fort Sill, NFFE and IBT Local 886 agreed that electioneering, solicitation,
and campaigning would take place during break times.

Heine was working at her desk at 9:30 a.m. on October 9, 1985 and no
supervisors were in the work area. There were no set break periods, rather
employees in this work area take their breaks at the discretion of the
individual employee. There were no supervisors in the area. At 9:30 a.m. on
October 9, 1985 two IBT supporters, one being Carl Stein, inquired from Marshall
if there were particular break times. Marshall advised Stein that there were not
set break times and that employees took their breaks when they wished. They
asked Marshall if it was okay to leave IBT literature at the empty desks and
Marshall consented. The IBT supporters proceeded to distribute the literature at
the empty desks. Stein offered Heine a piece IBT literature. Heine stated that
she was for the other union and Stein stated he would just leave it and walked
away. This encounter took about 1/2 minute. The IBT supporters talked to two or
three employees and remained in this area 5 to 10 minutes. Then they left.

Objection 3

On October 9, 1985, at approximately 11:15 a.m., Teamster representatives
(one identified as Ms. Gibble and an unidentified food service employee), were
allowed to talk to employees of the surgical Clinic at the Reynolds Army
Community Hospital reception desk for approximately 30 minutes. [ v29 p18 ]

On October 9, 1985 employee Wanda Selig observed three IBT supporters,
including two employees, 18
talking to the receptionist of the Surgical Clinic at Reynolds Army Hospital at
about 11:30 a.m. The IBT supporters were at the receptionist's desk because the
receptionist Archie Davis had asked them telephonically, to come to his station
at lunch hour so he could speak to them. The three IBT supporters asked and
received permission from the Sergeant of the clinic to speak to Davis. Davis
invited the three IBT supporters to a disco dance he was going to give at a
hotel in the town. 19
Davis wanted as many people as possible to come and told the three to invite
others, including Wanda Selig. A Fort Sill representative asked the people at
the receptionist's desk what they were talking about. When told it was about the
disco party, the official left. The three IBT supporters went to Selig's work
place and, after receiving permission from Selig's supervisor, asked Selig to go
to the brown bag area to talk. When they arrived at that brown bag area, the
three IBT supporters told Selig what they had talked to Davis about and invited
her to go to the disco dance also.

Objection 4

On October 17, 1985, the polling area within Building 4705 (polling site 7)
was moved during the election. The ad-hoc polling area was inappropriate to the
conduct of the election. Non-voters circulated throughout the area during the
voting. In addition, Teamster supporters wearing campaign paraphenalia were
allowed to campaign in the polling area and were allowed to escort voters to the
observer desk.

A voting site was set up in the open area of Building 4705 (the Library
building). After about one and one-half hours. 20
the polling place was moved, at the request of Fort Sill, into the library area
in Building 4705 to permit construction work to be performed in the open area.
[ v29 p19 ]

The polling place was not up in the library, near the library entrance,
relatively near where it had originally been set up. The record establishes that
the new polling place was set up so that there was a table for the election
observers; the voting booth was near the tablet but the secrecy of the voting
booth was maintained and secure; and the ballot box was in the plain view of the
observers and the secrecy of the ballot process was intact. There were some
number of employees using the library during the balloting period, but there was
no showing this interfered with the voting process or compromised the secrecy of
the ballot. The record does not establish that any employee was discouraged from
voting or that circumstances were such as to discourage voting.

One person wearing Teamster Insignia escorted a deaf, and apparently mute,
employee to the observers' table. The Teamster supporter then promptly left.

Three or four employees wearing Teamsters' insignias, 21
were in the area of the observers table making noise. NFFE observer Selig
complained to the FLRA agent concerning the presence of the three or four
employees wearing the Teamsters insignia in the voting area. The FLRA agent
approached those employees and were advised they were there to install a
telephone in a nearby office. They then left when asked by the FLRA Agent. They
had been in the polling area a total of about 10 minutes.

There were representatives of both unions outside the building, in a picnic
area more than 200 feet from the voting area. Some such employees wearing IBT
insignia took some pictures.

Objection 5

On or about October 10, 1985, two representatives of the employer, Michael
Owen, Principal Deputy Assistant Secretary of the Army and Valcris Ewell, Deputy
Assistant Secretary of the Army, met with Charlie Thompson, Secretary -
Treasurer of the Teamsters Local 886, (the petitioner), and four Fort Sill
employees (three of whom are members of a [ v29 p20 ] bargaining unit which is
represented by NFFE Local 273) and discussed matters affecting working
conditions at Fort Sill.

The above-referenced meeting was the subject of a Teamster campaign flyer
entitled "When we talk for you, the White House listens," which was distributed
less than twenty-four hours prior to the opening of the polls on October 17,
1985.

The facts relating to this objection are met forth in the initial findings of
fact dealing with the alleged unfair labor practice.

On October 17, 1985, Teamster Representatives Mr. Peterson and Marge Duncan
were in Building 2243, Supply Branch, Defense Industrial Organization
distributing literature and talking to employees during duty time.

On October 9 and 16, 1985 Teamster supporters remained in Building 2243 after
the morning break time talking to employees. 22
The record does not establish what was said. The Teamster supporters remained in
the work area about 10 minutes after morning break time ended on each day. 23

On October 17, 1985 two Teamster supporters were in Building 2243 a little
after 9:00 a.m. urging employees to [ v29 p21 ] go vote and distributing Teamster
literature, T-shirts, hats, etc. Again employee Hoover went to report this to
her supervisor and, when Hoover returned, the two IBT supporters were leaving.

Objection 7

Teamster representatives were given access to work areas through-out Reynolds
Army Community Hospital after offices were locked. On or about September 23,
1985, Teamster representatives were allowed to "desk drop" literature after
working hours. On September 24, 1985, at the beginning of the work day, Teamster
literature was discovered on employees' desks.

On September 24, 1985, when the first employee arrived in the morning and
opened Room 7A of the Reynolds Hospital, she found two pieces of literature on
each of the desks of the five employees who work in ROOM 7A. The record does not
establish who distributed the literature or how it got on the employee desks.

Discussion and Conclusions of Law

The General Counsel for the FLRA alleges that Army violated section
7116(a)(1) 24
of the statute by breaching the requirement of neutrality during the pendency of
a question concerning representation at its Fort Sill facility by conducting a
meeting on October 10, 1985 in the Old Executive Building with representatives
of the Teamsters Local 886, IBT, and employees in the Fort Sill bargaining unit
which was represented by NFFE Local 273, during which [ v29 p22 ] matters
concerning conditions of employment were discussed and alternatively that Army
violated section 7116(a)(1) of the Statute by engaging in the above described
conduct when Army either know or should have known that there was a pending
question concerning representation and/or that the employees at the meeting were
employees in the Fort Sill bargaining unit represented by NFFE Local 273. 25

Section 7102 of the Statute provides:

"Each employee shall have the right to form, join or assist any labor
organization, or to refrain from any such activity, freely and without fear of
penalty or reprisal, and each employee shall be protected in the exercise of
such right. . . ."

The FLRA held in Department of the Air Force, Air Force Plant Representative
Office, Detachment 27, Fort Worth, Texas, 5 FLRA 492 (1981), herein called the
AFPRO Case, "that management's breach of neutrality during an election campaign
. . . interfere with the . . . rights of employees under the Statute and
therefore violates section 7116(a)(1) of the Statute. . . ." AFPRO case, supra
at 500. The AFPRO Case, supra, dealt of a representation petition. A newsletter
was published by the activity about two days before the scheduled election. The
newsletter was signed by the Activity's chief management official and was posted
on bulletin boards and distributed to employees. The FLRA concluded that the
contents of the newsletter could be interpreted by unit employees as implying
that they did not need and would not benefit from union representation and would
be unable to rid themselves of the union for years to [ v29 p23 ] come if they
voted in favor of the union in the forthcoming election. After rejecting the
argument that this was merely an exercise of free speech protected by section
7116(e) of the Statute the FLRA stated that employees should be free to choose
or reject union representation while management maintains a posture of
neutrality and that the breach of neutrality during an election campaign
interfered with employees' protected rights under Section 7102 of the Statute to
"form, join or assist any labor organization or to refrain from any such
activity" and therefore violated section 7116(a)(1) of the Statute. In reaching
this conclusion the FLRA relied upon and cited cases that arose under Executive
Order 11491, as amended. 26

The FLRA has held that in evaluating conduct to determine whether it
interferes with, restrains or coerces employees in the exercise of their
protected organizational rights an objective standard should be used. That is a
determination must be made whether the conduct would reasonably tend to
interfere with, restrain or coerce employees. See, Federal Mediation and
Conciliation Service, 9 FLRA 199 (1982). Thus it was held that neither the
subjective perceptions of the employee nor the intent of the employer was the
standard for judging conduct, but rather the test is whether, under the
circumstances of the case, the employer's conduct or statements may reasonably
tend to interfere with the exercise of employees' protected rights.

I conclude that the October 10, 1985 meeting in the Old Executive office
Building was conduct by the Army which, objectively would reasonably be
interpreted by employees as an expression, by the Army, that it favored the
Teamsters in the pending representation election. Thus Army violated the
principle of neutrality and thereby violated Section 7116(a)(1) of the Statute.
This interpretation of the impression to be drawn from the meeting was clearly
expressed in the Schroeder memo.

The October 10, 1985 meeting was held some seven days before a run-off
election was to be held. The Teamsters [ v29 p24 ] were challenging the status of
the incumbent union, NFFE Local 273, the collective bargaining representative
for the subject unit of employees. During the pendency of the question
concerning representation (QCR) the incumbent union, NFFE Local 273, was still
the collective bargaining representative of the employees and remains so until
the QCR is resolved. See Department of Justice, Immigration and Naturalization
Service, 9 FLRA 253 (1982). Thus, although during the pendency of a QCR an
agency must remain impartial, if matters arise that necessitate bargaining and
negotiations, the agency must meet and bargain with the incumbent union. 27
Under no circumstances when such a QCR is in existence would it be appropriate
for the agency to bargain and negotiate, or appear to bargain and negotiate,
with the challenging union. Such conduct, it is concluded, would reasonably send
a message to the employees that the agency is favoring the challenging union. To
the extent, during a QCR, the agency is required to and does bargain over
conditions of employment with the incumbent union, the agency is merely
fulfilling its statutory obligation. However, when it meets and negotiates, or
appears to do so, concerning conditions of employment with the challenging union
the agency appears to be expressing a preference with respect to whom it wished
to prevail In the QCR. Such conduct or expression of preference is the very
violation of the principal of neutrality which the FLRA recognized as
constituting a violation of section 7116(a)(1) of the Statute.

In the subject case the meeting of October 10, 1985 constituted a clear
expression by the Army to unit employees that the Teamsters would be a more
effective representative than NFFE and that the Army preferred the Teamsters be
chosen as the collective bargaining representative by the employees in the
October 17 election. Thus top officials of [ v29 p25 ] the Army 28
met with Teamster officials and Fort Sill employees, three of whom were members
of the NFFE bargaining unit. 29
During the meeting the participants primarily discussed sub-contracting at Fort
Sill. with respect to the subcontracting they discussed whether and how Fort
Sill was to comply with the OMB subcontracting regulations (OMB Circular A-76),
the poor communications between Fort Sill management and employees, how
employees should participate in the contracting out decision making process, the
effect of subcontracting out on the morale of the employees and whether any
employees would be layed off or RIFed 30
because of subcontracting out. These matters were raised and discussed, among
others, by the employees who were in the NFFE collective bargaining unit and
they were discussed with respect to how they affected and concerned the activity
organizations within the NFFE collective bargaining unit. 31
Finally, Ewell, the Army's spokesman agreed, (1) that compliance with OMB
circular A-76 and Army regulations would be enforced at Fort Sill, (2) that Fort
Sill would better communicate with employees concerning contracting out, (3)
that employee participation in the contracting out process would be assured and
(4) that no one would go out the gate. Finally Ewell agreed that, if necessary,
he would come to Fort Sill to make sure all of this was complied with. All of
this would reasonably appear to employees as [ v29 p26 ] to constitute bargaining
32
by the Army with the Teamsters, on behalf of employees in the NFFE bargaining
unite concerning contracting out at Fort Sill and the impact and implementation
of such contracting out. This appearance of bargaining to employees Is
especially true when the formality of the meeting, including the rank or level
of the Army negotiators and the location of the meeting, is taken into
consideration.

The argument that it could not have been negotiations because contracting out
can not be negotiated. 33
since it is a management right, is rejected. Thus although contracting out may
constitute a management right, Army representatives could, and did, engage in
bargaining about it, even if at some later point Army could unilaterally have
withdrawn from any agreement. In fact Army expressed no such reservations and
limitations to the employees present and did appear to be bargaining. In fact to
engage in such bargaining about a management right with the Teamsters appears
clearly to express the Army's preference for the Teamsters. Further many aspects
of contracting out and its impact and implementation have been held by the FLRA
to be negotiable. 34

The most persuasive argument for the proposition that the October 10 meeting
did not violate the neutrality [ v29 p27 ] requirement is that in the July 1, 1985
letter to NFFE the White House indicated it would meet with NFFE to hear its
concerns. Thus it appears the invitations are equal and neutrality was
maintained. Surely, it could be argued the Teamsters did not destroy this
neutrality, by utilizing this management offer, which was made to both sides. As
appealing as this argument is, at first blush, it must be rejected. The instant
situation, as described above, was one in which there was an incumbent union. In
such a situation management was not permitted or privileged to bargain with the
contesting union until the incumbent lost its position, until the OCR was
determined. This situation is different, and it is an important distinction,
that the subject case does not involve two "out" unions competing to represent
unrepresented employees. Rather this is a situation where the employees were
represented by NFFE, and IBT was trying to oust NFFE. Until such time as the QCR
was determined, NFFE continued to represent the employees in the disputed unit.
Accordingly Army could not choose to meet and bargain with both unions. Rather,
to the extent there was to be any bargaining, it necessarily had to be with the
incumbent, NFFE. Thus by meeting and appearing to bargain with the Teamsters
over the conditions of employment in the NFFE collective bargaining unit, Army
breached the requirement of neutrality, and this was not cured by the
outstanding offer to meet with NFFE. Further even if it were two "out" unions, a
meeting with employees by the Agency under the auspices of one of the unions,
would constitute a clear statement of preference by the Agency, 35
even if there was an invitation to the other union to sponsor such a meeting.

In the subject case Army held only a meeting sponsored by the Teamsters to
discuss working conditions in the NFFE unit, which was the subject of a QCR.
Army held a meeting sponsored by only one of the rival labor organizations and
thus, in the eyes of the employees this was a clear expression that Army
preferred that the Teamsters prevail in the OCR. [ v29 p28 ]

There are some contentions that the Army did not know about the election, the
parties involved or that contracting out was an issue at Fort Sill. First in
deciding whether conduct violates section 7116(a)(1) of the Statute by meeting
the objective test, knowledge is irrelevant. Once management engages in conduct
which reasonably would interfere with employee rights, the violation occurs.
Management need not have intended it, nor know it would have that affect. We are
here trying to protect the employees from interference in the exercise of their
rights. There is no logical reason that management need intend such interference
or even know all the facts. However, to the extent that knowledge is necessary I
conclude and find that Army knew about the election, the parties involved and
that contracting out was an issue. From the very beginning, when the meeting was
set up, it was known and communicated that it was about Fort Sill and a
contracting out problem. Schroder's memo made it quite clear that the Army knew
about the election, who was involved and the nature of the QCR. Although all of
this information might not have been communicated to Ewell, it must be imputed
to him and his colleagues. To hold otherwise would make it virtually impossible
to establish precisely which management officials actually had which
information.

Army contends that Ewell was merely explaining the contracting out procedures
to employees, in accordance with Presidential and Governmental policy. This
contention is without merit. The situation was not merely a meeting of employees
in which the Army explained the contracting out procedures; rather, it was a
meeting sponsored by the Teamsters during which the Army engaged in a give and
take with employees in the NFFE unit concerning the contracting out at Fort Sill
and the procedures to be followed to meet, to some extent, the employees'
concerns and complaints. It was, in the circumstances of a QCR, an expression by
the Army that the Teamsters would be more effective representative for the
employees than NFFE, in effect an expression of preference for the Teamsters. A
result clearly foreseen in the Schroeder memo to Ewell.

Further because the meeting involved employees in the NFFE bargaining unit it
was foreseeable that the substance of the meeting would be, and was,
communicated to the employees in the NFFE bargaining unit. [ v29 p29 ]

In light of all of the foregoing, therefore, it is concluded that by holding
the October 10, 1985 meeting, Army violated the requirement of neutrality and
thereby violated section 7116(a)(1) of the Statute.

Objections.

In considering the objections I recognize the FLRA seeks to maintain as
closely as possible, conditions which will assure employees' basic right to
complete freedom of choice in selecting a bargaining representative United
States Department of Justice, United States Immigration and Naturalization
Service, 9 FLRA 253 (1982).

Objection No. 5 deals with the unfair labor practice described above and for
the reasons set forth therein I conclude the meeting would have interfered with
the running of a fair election and it is recommend that this objection should be
sustained. AFPRO Case, supra.

Objection 1 was not supported by any evidence and it is recommended it should
be dismissed.

Objections 2, 3, 4, 6, 7 involved various incidents and occurrences which are
too minor, insignificant and isolated to conclude they interfered with the
conduct of the election or effected its result. It is recommended they be
dismissed.

With respect to Objection 5 it is recommended it be sustained. It is
concluded that the meeting was improper conduct which could reasonably be
expected to have improperly affected the results of the election. Pursuant to
Section 2422.20(9)(1) of the FLRA's Rules and Regulations, an Administrative Law
Judge may not recommend the remedial action to be taken regarding the objections
to an election.

With respect to the unfair labor practice case, having concluded Army
violated Section 7116(a)(1) of the Statute, I recommend the FLRA issue the
following:

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules
and Regulations and Section 7118 of the Federal Service Labor - Management
Relations Statute, the Authority hereby orders that United States Department of
Defense, Department of the Army, Washington, D.C. shall: [ v29 p30 ]

1. Cease and desist from:

(a) Conducting or participating In meetings sponsored by the International
Brotherhood of Teamsters with employees in a unit represented by NFFE, or any
other labor organization, during which terms and conditions of employment and
matters of concern to employees are discussed, while a question concerning
representation involving the unit is pending before the Federal Labor Relations
Authority.

(b) In any like or related manner expressing a preference as to which labor
organization should prevail in a representation election.

(c) In any like or related manner Interfering with, restraining, or coercing
its employees in the exercise of rights assured by the Federal Service Labor -
Management Relations Statute.

2. Take the following affirmative action:

(a) Post at the facilities of the United States Department of Defense,
Department of the Army in Fort Sill, Oklahoma, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by a responsible official and shall be posted
and maintained for 60 consecutive days, thereafter, in conspicuous places,
Including bulletins boards and other places where notices to employees are
customarily posted. The United States Department of Defense, Department of the
Army, shall designate an official at Fort Sill who shall take reasonable steps
to insure that such notices are not altered, defaced, or covered by any other
material.

APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct or participate in meetings sponsored by the International
Brotherhood of Teamsters with employees in a unit represented by NFFE, or any
other labor organization, and during which terms and conditions of employment
and matters of concern to such employees are discussed, while a question
concerning representation for the unit is pending before the Federal Labor
Relations Authority.

WE WILL NOT in any like or related manner express a preference as to which
labor organization should prevail in a representation election.

WE WILL NOT In any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights assured by the Federal Service Labor -
Management Relations Statute.

Footnote 1 Page 5 of the Judge's decision contains an
inadvertent error regarding the number of votes for the Teamsters.

Footnote 2 Daniels had by this time succeeded Rollins
on the White House staff.

Footnote 3 Although the references to the meeting
indicate "White House" meeting, it actually occurred in the Old Executive Office
Building, which is part of the White House complex. For consistency, the meeting
will continue to be referred to as the "White House" meeting or the October 10th
meeting.

Footnote 4 Faydean Crouse testified that she was the
Teamsters' observer at the poll until 9:00 a.m. on election day. However, her
name and signature do not appear on the Certificate of Conduct of Election.

Footnote 5 We note the Teamsters' correction of the
Judge's inadvertent use of the term "subcontracting" instead of "contracting
out" on pages 25 and 26 of his Decision.

Footnote 6 National Federation of Federal Employees
will hereinafter be referred to as NFFE.

Footnote 7 General Drivers, Chauffeurs and Helpers
Local Union No. 886, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, will hereinafter be referred to
as IBT Local 886 or Teamsters Local 886 and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America will be referred to
as IBT Or Teamsters International.

Footnote 8 The unit at Fort Sill represented by NFFE
(the subject of the petition in Case No. 6-RO-40005) will hereinafter be
referred to as the NFFE bargaining unit. The other unit at Fort Sill which is
represented by the Teamsters will be referred to as the Teamsters bargaining
unit.

Footnote 9 The objections and the specific facts that
relate thereto will be set forth later in this decision.

Footnote 10 I find Ewell's testimony with respect to
the memo unpersuasive. This memo, addressed to Ewell was in the Army's files and
Ewell, although he testified that Schroeder informed him of the "substance" of
the memo, denied he was told of each specific item when so asked.